AG Brown's support for conservative judicial nominee could cost him

SACRAMENTO, Calif. (Legal Newsline)-If California Appeals Court Associate Justice Charles Poochigian turns out to be as socially conservative on the bench as he was as a state lawmaker, it could spell trouble for state Attorney General Jerry Brown's political future, lawyers say.

Republican Gov. Arnold Schwarzenegger's pick to fill a vacancy on the 5th District Court of Appeal in Fresno, the former state lawmaker's nomination drew criticism from a range of Democratic constituencies, including gay rights groups.

Equality California decried the nomination over Poochigian's opposition to gay rights bills during the time he was in the Legislature, while the National Organization for Women said the governor should have made another pick to sit on the appeals panel in the Central Valley, noting that the court is 78 percent male and 88 percent white.

Jennifer Pizer, senior counsel at Lambda Legal, said Monday that Brown's support for Poochigian's confirmation could come back to haunt him if progressives' fears about Poochigian are realized.

"I certainly hope that as he steps into his role as a judge that Mr. Poochigian would understand that quite a few people have concerns because of his voting record," she said.

Brown, as a member of the three-member Commission on Judicial Appointments, joined his colleagues to unanimously confirm Poochigian, 60, even amid objections by the state bar, which argued that Poochigian had not practiced law for more than two decades and has never handled a case in the appellate courts. They also noted that the former lawmaker has not practiced criminal law.

On the three-member Commission on Judicial Appointments are Brown, Chief Supreme Court Justice Ronald George and 5th District Presiding Justice James Ardaiz. Interestingly, Brown beat Poochigian in the 2006 California attorney general race.

As for whether Brown's support for Poochigian's nomination will be a political liability for him should he decide to run for governor -- a post he held from 1975-1983 -- Pizer said it is too soon to know what will come of last month's confirmation vote.

"It will depend on how Mr. Poochigian tackles the job and it may depend on what cases come before him," she said, noting that his docket might not have on it gay rights or family law issues that may reveal his philosophy on the bench.

Pizer, who helped draft California's landmark domestic partnership legislation in 2003 and has worked on an array of other state gay rights bills, said Poochigian has a reliably "partisan-conservative" record from his years in the state Capitol.

"The question is whether he is somebody who will see the judicial role as very different from the legislative role," Pizer said in a telephone interview from her Los Angeles office. "Sometimes people who have served as legislators see the roles very differently. But at other times, a person's record as a legislator reflects their views of social policy and how the laws should work, and it is an indicator of how they see the role as judge."

Saying that the California bench lacks diversity, she said Schwarzenegger should have perhaps tapped a gay or lesbian for the post.

"The legal system can't command the loyalty and respect of the general public if it is not representative," Pizer said. "If people don't see themselves reflected in the machinery of justice then people will not have trust that the system is informed and fair."

As governor, Brown appointed openly gay jurists, including San Francisco County Superior Court Judge Mary Carolyn Morgan. More recently, Schwarzenegger this year appointed Ronald Albers, an openly gay court commissioner, to the San Francisco County Superior Court.

Equality California Executive Director Geoffrey Kors testified before the Commission on Judicial Appointments last month, urging the panel to reject Poochigian because of his opposition to gay rights legislation as a state assemblyman and senator.

In a lengthy interview Monday, Kors told Legal Newsline that he is "disappointed" that Brown supported the nomination given that Poochigian voted against every gay rights bill that came before him.

"I would find it hard to believe that you would see unanimous support for an applicant to be a judge who was in the Legislature who voted against housing and employment (protections) based on their religion or race," Kors said.

At the hearing, Brown said he saw no reason to reject Schwarzenegger's nominee, adding that governors should be able to make their picks to the state courts, absent extraordinary circumstances.

"The governor decides who gets to be appointed or not. Whatever the commission says, the ultimate responsibility lies with the governor," Brown said. "I am satisfied with how the system works. I will give you the benefit of the doubt so I am going to vote 'yes.'"

As for whether Brown's support for the nomination could become a campaign issue during the Democratic gubernatorial primary should Brown officially enter the race, Barbara O'Connor, director of the Institute for the Study of Politics and Media at California State University, Sacramento, said she does not think so.

Kors also said it is unlikely, noting that Brown has a solid record on gay and lesbian issues.

Brown, drawing national attention this year, argued in state and federal courts that Proposition 8, the statewide constitutional ban on same-sex marriage, should be overturned despite its approval by voters.

"His solid record on (lesbian, gay, bisexual and transgender) rights will result in him having widespread support, at least based on the makeup of the current race," Kors said. "But that does not mean we agree with everything he does."